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of another State, it is inappropriate when an entire State is annexed by another. "I agree," he said, "with Senators on the other side that a treaty is a contract that has been your contention throughout until the treaty has been signed on both sides. The very minute that is done one of the parties is gone, and there is no continuing contract. Therefore it is simply a cession on their part and an acceptance on ours, and it might be done just as well by legislation as otherwise."

In the report made March 16, 1898, by the Senate Committee on Foreign Relations' in favor of the Joint Resolution of Annexation, the annexation of Texas was cited as a precedent and in addition the assertion made that for annexation the consent of the government of the annexed territory is needed but not, necessarily, that of its populace.2

1 Senate Report 681, 55th Cong., 2d Sess.

2 "This Joint Resolution [annexing Texas]," the Committee declare “clearly establishes the precedent that Congress has the power to annex a foreign State to the territory of the United States, either by assenting to a treaty of annexation or by agreeing to articles of annexation or by act of Congress based upon the consent of such foreign government obtained in any authentic way. No exercise of power could be more supreme than that under which Texas was annexed to the United States, either as to its scope or the manner of the annexation or the choice of conditions upon which Congress would merge the sovereignty of an independent republic into the supremacy of the United States. The act also establishes the fact that a treaty with a foreign State which declares the consent of such State to be annexed tc the United States, although it is rejected by the Senate of the United States, is a sufficient expression and authentication of the consent of such foreign State to authorize Congress to enact a law providing for annexation, which, when complied with, is effectual without further legislation, to merge the sovereignty of such independent State into a new and different relation to the United States and toward its own people. It further establishes the fact that Congress, in legislating upon the question of the annexation of a foreign State, rightfully acts upon the consent of such State, as the sovereign representative of its people, and that the power of Congress to complete the annexation of such foreign State depends alone upon the sovereign will and consent of such State, given and expressed through its organized tribunals. It further establishes the fact that Congress cannot acquire the right or jurisdiction to annex a foreign and independent State through a vote of a majority of its people, in opposition to the will of its constituted authorities. It is the constitutional power of Congress that operates to annex foreign territory. Such a proceeding on the part of

The assertions here made by the Committee that the annexation of Texas constituted a precedent for annexation by legislative act, the consent of the constituted governmental authorities of the annexed territory being obtained, is open to question. For it it will be remembered that Texas was admitted directly into the Union as a State, and, therefore, its admission could be upheld. as an exercise of the power given to Congress and the President to admit new States into the Union.

§ 155. Consent of Inhabitants of Annexed Territory not Required.

As to the question whether it be necessary to obtain the consent of the inhabitants of the territories to be annexed, it may be said that this is, or may be, a matter of justice and political expediency but not of legal necessity. The act of annexation being, ex hypothesi, legislative, its legal force is derived from the body which enacts it, and it would be an error to hold its legal force necessarily dependent upon a consent obtained from some other source. There would, of course, be no legal objection to Congress providing, should it see fit, that the going into effect of an act of annexation should be dependent upon its approval by the inhabitants of the territory to be annexed, just as in its enabling acts" for the admission of Territories as States, or in many of its acts with reference to the Indians, it provides that the consent of those directly concerned shall be obtained. But this is not a matter of legal necessity. It is not a division or a delegation of legislative power, either of which would be necessarily unconstitutional.

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mission of the question to vote of the people of such a State would only create disorder and revolution in a foreign State applying through its constituted authorities for admission into the United States. This important, clear, and far-reaching precedent established in the annexation of the Republic of Texas is a sufficient guide for the action of Congress in the passage of the Joint Resolution herewith reported. If, in the judgment of Congress, such a measure is supported by a safe and wise policy, or is based upon a national duty that we owe to the people of Hawaii, or is necessary for our national development and security, that is enough to justify annexation, with the consent of the recognized government of the country to be annexed."

Nor is there any principle of public law, or general precedent from our own practice that requires the consent of the population of an annexed territory to be obtained. In none of the instances, except that of Texas, has the United States deemed this consent necessary.3

As we shall later see, it is quite usual to provide in treaties of annexation that the people of the territories transferred shall have an election whether they shall become citizens of the annexing State or retain their old national status. But this, of course, is a question quite distinct from the transfer of the sovereignty over the territory in question.

Though it thus appears that territory may be annexed without the consent of the people, it has not yet been shown that, in fact, a legislative act is constitutionally adequate for the purpose. It has been shown that the admission of Texas by a Joint Resolution of Congress directly into the Union as a State could be justified as an exercise of the power given to Congress by the Constitution to admit new States into the Union, and did not, therefore, establish a precedent for the annexation of Hawaii. To the author's mind the annexation of Hawaii by legislative act, was constitutionally justified upon the same ground that the extension of American sovereignty by statute over the Guano Islands was justified; namely, as an exercise of a right springing from the fact that, in the absence of express constitutional prohibition, the United States as a sovereign nation has all the power that any sovereign nation is recognized by international law and practice to have with reference to such political questions as the annexation of territory.

In addition to this source of authority, it would also be quite reasonable to argue that the annexation of the Hawaiian Islands

3 Hawaii was annexed at the request of the Hawaiian Government but it cannot be said that the United States made a favoring popular vote a condition precedent to annexation. Upon the general international practice, see Solière, Le plébiscite dans l'annexation. 1901. Hall, International Law, 4th ed., p. 49, says: "The principle that the wishes of a population are to be consulted when the territory they inhabit is ceded has not been adopted in international law, and cannot be adopted into it until title by conquest has disappeared." Cf. Moore, Digest of Int. Law, § 83.

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by act of Congress was a necessary and proper" measure for the military defense of the nation, and for the protection and increase of our foreign commerce; for there can be no question but that a conceived military and commercial need was one of the strongest of the motives that operated to bring about the annexation.1

The question as to the constitutionality of the annexation of Texas or of Hawaii has never been directly raised and passed upon by the Supreme Court of the United States. In fact, however, the court has of course impliedly recognized the validity of the annexation both of Texas and Hawaii in every case in which it has enforced the laws of, or federal laws relating to, these territories. That the point has not been directly raised is due to the principle uniformly declared by the court, when the point has, in other instances, been raised, that the territorial limits of sovereignty is a question the decision of which by the political branches of the government is absolutely binding upon its judiciary.

+ The Committee (Senate Report 681, 55th Cong., 2d Sess.) in its report favoring annexation of Hawaii, say: "As the place — the only one—in the North Pacific Ocean for the concentration of cable lines; for obtaining coal, water, or provisions for ships; for the repair of vessels; or for the storage of goods in bond, or otherwise, from all countries for the purposes of trade around the whole circuit of the coasts of the Pacific Ocean; and with its numerous islands, the Hawaiian Islands are the central point of distribution which can have no possible competitor. This enormous advantage to our trade in the islands and across the Pacific Ocean must be felt by every industry in the United States. Their separation by a distance of 2,000 miles from all other lands, and their central location as to every point on the great arc of the circle that extends from the Mexican border almost to the coast of Siberia, the Pacific frontier of Alaska, Washington, Oregon, and California, makes the Hawaiian Islands the most important point in the seas of the Western Hemisphere for the fostering and protection of our coastwise and foreign commerce. As ships of war are the necessary complement of ships of commerce, these great advantages belonging to the geographical location of the Hawaiian Islands are equally indispensable to our Navy, as the protector of our commerce, coming from both the Atlantic and Pacific Oceans. On the commercial and military views of these questions the opinions of merchants and navigators, and of our naval officers, as to the developments and necessities of the future — as yet unknown are our most intelligent and safest guides. The Committee can appeal to these sources of information and safe forecast with the confidence that comes from their almost unanimous agreement."

With reference to the annexation of the Philippine Islands, the point was raised by certain "Anti-Imperialists" that the United States did not get a valid title for the reason that Spain had never reduced some of them to possession; and that, as to others, at the time of transfer neither she nor the United States was in effective occupation. This, however, is not a question of constitutional, but of international law-one, that is, that a foreign power might possibly raise, but which could not be considered in our courts.

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